COVID-19 mandate violated Charter but was 'justified,' BC judge rules

Several healthcare workers who challenged BC’s COVID-19 vaccination requirements have lost a bid to have Provincial Health Officer Bonnie Henry’s health order thrown out in court.

The petitioners in the case were all healthcare workers who lost their jobs due to being unvaccinated against COVID-19.

It was said by the healthcare workers that the health orders requiring vaccination against COVID-19 are causing “ongoing hardship and harm” to those who lost their jobs and to the healthcare system itself due to the “absence of highly qualified personnel.”

According to the court documents, about 1,800 healthcare workers in BC lost their job due to their choice to remain unvaccinated. Around 35-40 people were able to secure a medical exemption.

The healthcare workers challenged the order’s reasonableness on a few different grounds.

First being that, by the fall of 2023, there was no longer a reasonable basis to support the conclusion that COVID-19 posed a significant risk to public health. They also rejected the claim that unvaccinated workers were a risk to vulnerable patients or other vaccinated staff.

They said that by October 2023, the virus no longer warranted a public health emergency due to “greater scientific certainty, less severe variants, vaccinations and natural immunity.”

Further, the petitioner’s position was that the vaccine mandate infringed on their Charter rights in regards to freedom of religion and “personal concerns and convictions.” They also pointed to remote healthcare workers who, regardless of the fact that they had no contact with patients, also lost their jobs due to being unvaccinated.

In the decision posted on Monday, the judge said that although the health orders handed down by Henry during the pandemic infringed on their Charter rights, it was a justified response.

“This infringement was reasonable in the circumstances because, on the record available to the PHO, it did not exceed what was necessary to achieve the essential public health objectives of protecting vulnerable patients, residents and clients from serious illness and death, and safeguarding the functioning of the Province’s healthcare system.”

The judge dismissed the petitioner’s arguments, but did ask the Provincial Health Authority to reconsider the vaccine requirement for healthcare workers able to perform their roles remotely, or those who do not have contact with patients or frontline workers.

The BC government has said the healthcare worker shortage is not linked to the termination of unvaccinated professionals. Since the mandate was introduced by Henry in the fall of 2021, the province has estimated that about 2,500 employees were ultimately fired.

As BC’s health system has struggled to overcome a staffing shortage, some have criticized the government’s decision to maintain the vaccine mandate when every other province in Canada has dropped it.

BC United’s Kevin Falcon has said there is “no science” to support the mandate and accused the NDP of waging a “crusade against health care workers.”

John Rustad, the leader of the Conservative Party of BC, has also attacked the mandate and urged the BC NDP government to drop it and rehire unvaccinated workers.

Meanwhile, the Province has remained steadfast in its commitment to maintain the vaccine mandate in healthcare settings.